Information Law Institute

Spring 2011 Colloquium


Thursday, April 7, 2011 4:00 – 5:30 PM
Speakers:    Dennis Hirsch, Professor of Law, Capital University Law School
Ira Rubinstein, Senior Fellow, Information Law Institute; Adjunct Professor of Law, NYU School of Law
Title: Collaborative Governance for Internet Privacy? The Lessons from Regulatory Experience

Room 202, 40 Washington Square South

Abstract: For more than a decade, the debate over Internet privacy regulation has featured a battle between those who favor direct government regulation, and those who advocate industry self-regulation.  These camps have largely fought each other to a standstill.  Industry groups have mounted effective campaigns against bills that sought to establish government rules.  By the same token, the proponents of government regulation have convincingly demonstrated the flaws in industry attempts at self-regulation. Neither group has succeeded in addressing the issue.  Recently, a third alternative has emerged. The latest Congressional bill, and a long-awaited Department of Commerce Report, call upon government and industry to work together to draft a comprehensive set of Internet privacy rules.  The basic idea is for Congress to legislate broad privacy principles; industry to draft the rules that flesh out and implement these principles; and government regulators to review, approve and enforce the industry-drafted rules.  Regulatory theorists call such an approach "collaborative governance" since it relies on close industry-government cooperation.  Is this a sound way to protect personal information on the Internet?  Have governments utilized this approach in the past to protect personal data and, if so, with what result?  Professors Rubinstein and Hirsch will address these questions in their talk.  Professor Rubinstein has written about two American initiatives that utilize a collaborative approach to privacy regulation -- the COPPA Safe Harbor Program, and the U.S.-E.U. Safe Harbor Agreement.  Professor Hirsch recently completed a Fulbright Professorship in which he studied an innovative Dutch form of privacy regulation in which government-industry collaboration plays a central role.  Rubinstein and Hirsch will draw on their respective research projects to provide insight into the recent proposals for a collaborative approach to U.S. Internet privacy regulation. 

Dennis Hirsch is a scholar of both information privacy law and environmental law at Capital University Law School. Professor Hirsch is a recipient of a prestigious Fulbright Senior Professorship Grant for research and teaching in The Netherlands. He will lecture on comparative information privacy law at The University of Amsterdam’s Institute for Information Law and will conduct research on innovative Dutch approaches to information privacy regulation.  Professor Hirsch teaches environmental law, information privacy law, property law and appellate litigation and directs Capital’s concentration program in environmental law.  His articles have appeared in the Illinois Law Review, Georgia Law Review, Indiana Law Journal and numerous other legal journals. He is the author of a prize-winning textbook on environmental law practice and he is a frequent contributor to newspaper op-ed pages. Professor Hirsch serves as counsel to the law firm of Porter Wright Morris & Arthur and he has been a visiting professor at Notre Dame and Drake University law schools. He is currently serving as vice chair of the ABA’s Environmental Committee on Innovation, Management Systems and Trading and he co-founded the Central Ohio Sustainability Roundtable.

Ira Rubinstein is a Senior Fellow at the Information Law Institute. His research interests include Internet privacy, electronic surveillance law, online identity, Internet security and software liability. Rubinstein lectures and publishes widely on issues of privacy and security and has testified before Congress on these topics on several occasions. In September 2009, he organized a conference at the law school on Federal Privacy Legislation, and he participated in the December 2009 Federal Trade Commission Roundtable: Exploring Privacy. In July 2010, he testified at a hearing on a new privacy bill, H.R. 5777, the Best Practices Act, before the House Subcommittee on Commerce, Trade, and Consumer Protection. In 2011, he was awarded a research grant to explore regualtory issues related to "privacy by design." Most recently, he was an invited speaker at a Boalt Hall Law School symposium on "Technology: Transforming the Regulatory Endeavor," where he discussed his paper entitled "Regulating Privacy by Design." This paper will be published in the Symposium Issue of the Berkeley Technology Law Journal (forthcoming 2011). Other recent publications include "Privacy and Regulatory Innovation: Moving Beyond Voluntary Codes," I/S: A Journal of Law and Policy for the Information Society (forthcoming Winter 2011), which was selected by the Future of Privacy Forum in their best "Privacy Papers for Policy Makers" competition, and "Data Mining and Internet Profiling: Emerging Regulatory and Technological Approaches," co-authored with Ron Lee and Paul Schwartz, 75 U. Chi. L. Rev. 261 (2008). Prior to joining the ILI, he spent 17 years in Microsoft's Legal and Corporate Affairs department, most recently as Associate General Counsel in charge of the Regulatory Affairs and Public Policy group. Before coming to Microsoft, he was in private practice in Seattle, specializing in immigration law. He graduated from Yale Law School in 1985. From 1998-2001, Rubinstein served on the President's Export Council, Subcommittee on Encryption. He has also served on the Editorial Board of the IEEE Security and Privacy Magazine. In 2010, he joined the Board of Directors of the Center for Democracy and Technology.


Wednesday, April 20, 2011 6:30 – 8:30 PM
Speaker:    Ian Kerr, Professor, University of Ottawa 
Title: 2.50 for an Eyeball and a Buck and a Half for an Ear: Artificial Organs as Mass-Market Consumer Goods

5 Washington Place, Lecture Hall #101

Abstract: Technological innovation during the past several decades has enabled a stunning merger of humans and machines, allowing us to transcend traditional biological limitations through the implantation of microchips, digital body parts and artificial organs. Devices such as fully integrated cochlear implants, retinal inserts and various neural and bionic prosthetics promise to transform the sensory and motor abilities of those who adopt them. However, surprisingly little thought has been given to the ethical and legal aspects of their design and use. In this lecture, Ian Kerr, Canada Research Chair in Ethics, Law and Technology, examines current ethical and regulatory approaches that govern medical devices and argues that the existing paradigm of mass-market consumer goods is not particularly well suited for the domain of implantable devices. Drawing on lessons learned in the field of information technology law, Dr. Kerr concludes that special considerations are required in the healthcare context to ensure that patient autonomy and privacy are adequately protected in an era where our bodies are becoming inextricably tethered by devices and software owned by health care providers.

Prior to his appointment to the Faculty of Law at the University of Ottawa in 2000, Ian Kerr held a joint appointment in the Faculty of Law, the Faculty of Information & Media Studies and the Department of Philosophy at the University of Western Ontario. His devotion to teaching has earned six awards and citations, including the Bank of Nova Scotia Award of Excellence in Undergraduate Teaching, the University of Western Ontario’s Faculty of Graduate Studies’ Award of Teaching Excellence, and the University of Ottawa’s AEECLSS Teaching Excellence Award. Professor Kerr currently teaches a graduate seminar in the LLM concentration in law and technology (Technoprudence: Legal Theory in an Information Age), as well as a unique seminar offered each year during the month of January in Puerto Rico that brings students from very different legal traditions together to exchange culture, values, and ideas and to unite in the study of technology law issues of global importance (TechnoRico). Professor Kerr also teaches in the areas of moral philosophy and applied ethics, internet and ecommerce law, contract law and legal theory. In 2001, Professor Kerr was awarded the Canada Research Chair in Ethics, Law and Technology. He has published writings in academic books and journals on ethical and legal aspects of digital copyright, automated electronic commerce, artificial intelligence, cyber crime, nanotechnology, internet regulation, ISP and intermediary liability, online defamation, pre-natal injuries and unwanted pregnancies. His current program of research includes two large projects: (i) On the Identity Trail, supported by one of the largest ever grants from the Social Sciences and Humanities Research Council, focusing on the impact of information and authentication technologies on our identity and our right to be anonymous; and (ii) An Examination of Digital Copyright, supported by a large private sector grant from Bell Canada and the Ontario Research Network in Electronic Commerce, focusing on various aspects of the current effort to reform Canadian copyright legislation, including the implications  of such reform on fundamental Canadian values including privacy and freedom of expression.

RSVP to This is the Annual LeBoff Lecture sponsored by the NYU Department of Media, Culture, and Communication.


Thursday, April 28, 2011 12:00 – 1:30 PM
Speaker:    Guy Pessach, Associate Professor, Faculty of Law, Hebrew University of Jerusalem
Title: Reverse Exclusion in Copyright Law – Reconfiguring Users’ Rights - Paper

Room 202, 40 Washington Square South

Abstract: In the last decade, copyright law scholars developed novel and diverse approaches toward the role and nature of users' rights in copyright law. This paper advocates an approach that conceptualizes users' rights as reverse exclusion rights. Just like copyright owners have exclusive rights to do and authorize certain uses of copyrighted works, permitted uses of copyrighted works should also be subordinated to users' right of exclusion. For example, unless authorized by users, technological protection measures that override the fair use defense should be prohibited and classified as an infringement of users' rights. And just like a copyright infringement, an infringement of users' rights should also be subjected to remedies of injunction and monetary damages. The article begins by establishing the paradigm of reverse exclusion through economic and public-regarding rationales, which are parallel to the ones that justify copyright owners' exclusive rights. It then demonstrates the significance and contribution of reverse exclusion through several case-studies in which current concepts of copyright law and users' rights fail to achieve a socially-desired equilibrium.

Guy Pessach is an Associate Professor at the Faculty of Law, Hebrew University of Jerusalem and an Affiliate Fellow at the Information Society Project, Yale Law School, where he did his Post-doc studies as a Fulbright Scholar. Before joining the Hebrew University, Guy clerked for Justice Yitzchak Zamir at the Israeli Supreme Court. Guy is the recipient of the Alon Fellowship by the state of Israel for outstanding young scholars. During 2008-2009 he was a visiting professor at Georgetown Law School's Center for Transnational Legal Studies (London, UK).